State of Minnesota, Respondent, vs. Michael Pribyl, Appellant.

State of Minnesota, Respondent, vs. Michael Pribyl, Appellant. A06-0418, Court of Appeals Unpublished, March 13, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-418

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Pribyl,

Appellant.

 

Filed March 13, 2007

Affirmed Ross, Judge

 

Jackson County District Court

File No. 32K3-04-1085

 

Lori Swanson, Attorney General, Blaine A. Markuson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Robert C. O'Connor, Jackson County Attorney, Jackson County Courthouse, 405 Fourth Street, Suite 2D, Jackson, MN 56143-1588 (for respondent)

 

Samuel A. McCloud, Carson J. Heefner, Jared L. Reed, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

 

Considered and decided by Ross, Presiding Judge; Klaphake, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

This appeal follows a jury conviction of fourth-degree controlled-substance crime.  Appellant Michael Pribyl argues that evidence that an informant bought methamphetamine from him in a controlled buy at the informant's house was insufficient to support the conviction without evidence that police officers conducted a thorough search of the informant, her residence, and her vehicle.  Pribyl also argues that the state presented insufficient foundation by failing to provide a complete chain of custody concerning the methamphetamine that was admitted into evidence.  We affirm.

FACTS

In April 2004, Amber McDaniel agreed to cooperate with law enforcement officers in a controlled buy in exchange for reduced criminal charges.  McDaniel contacted officers and told them that she was going to buy a "teener," which is slightly more than a gram of methamphetamine, from Michael Pribyl.  Police searched McDaniel and found no contraband or money.  Officers gave McDaniel $190 in recorded bills to make the buy.  The officers equipped McDaniel with a listening device and installed a hidden camera inside her residence.  They positioned themselves to see McDaniel's residence and to observe the transaction.

The officers saw Pribyl enter McDaniel's residence and sit in the room where the hidden camera was installed.  The officers watched Pribyl toss a baggie to McDaniel, who was holding the money.  After Pribyl left, the officers observed McDaniel leave her residence and get into her vehicle.  The officers followed McDaniel, never losing sight of her.  She arrived at a predetermined location and handed an officer the baggie, which contained a white powdery substance.  McDaniel also returned $90.  The officers tested the powder with a preliminary testing device, which indicated that it was methamphetamine.  The substance weighed 1.3 grams.  Police sealed the baggie and eventually sent it to the Bureau of Criminal Apprehension for laboratory weighing and testing.  The BCA testing confirmed the substance to be methamphetamine.  The state charged Pribyl with two counts of fourth-degree controlled-substance crime for selling and possession with intent to sell methamphetamine.

During Pribyl's trial, a police sergeant testified regarding McDaniel's agreement to cooperate with officers in exchange for reduced charges in another matter.  The sergeant also testified that he watched Pribyl sell drugs to McDaniel on a monitor that projected images from the hidden camera in McDaniel's house.  The district court admitted into evidence the methamphetamine that the officers received from McDaniel.  Pribyl did not object.  An officer testified that his original seal was still on the evidence package.  A BCA forensic scientist testified that she tested the drugs.  She testified that the BCA received the evidence on May 5, 2005, and that she did not know where the evidence had been between the seizure in April 2004 and its arrival at the BCA in May 2005.  BCA reports indicating that they received the evidence and their findings were also admitted into evidence without objection.

McDaniel testified that she had been previously charged with aiding and abetting the purchase of methamphetamine and that she had agreed to cooperate with officers in exchange for dismissal of those pending charges.  The state played the videotape from McDaniel's home for the jury.  The tape showed Pribyl toss a baggie to McDaniel and McDaniel put the baggie in her pocket.  McDaniel then paid Pribyl $100.  It also showed Pribyl and McDaniel smoking methamphetamine.  McDaniel testified that the officers had told her not to smoke methamphetamine, but that she told them that if she did not it might raise Pribyl's suspicions.  The jury found Pribyl guilty, and this appeal follows.

D E C I S I O N

Pribyl argues that the evidence was insufficient for the jury to have found him guilty of fourth-degree controlled-substance crime.  We address a challenge to the sufficiency of the evidence by analyzing the record to determine whether the evidence, when viewed in a light most favorable to the guilty verdict, is sufficient to support the jury's decision.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We analyze both the facts presented and the inferences the jury could reasonably draw from those facts.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  We assume that the jury believed the state's witnesses and disbelieved contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Olhausen, 681 N.W.2d 21, 25-26 (Minn. 2004).  We do not search for reasonable doubt, but to determine whether there was enough evidence for a reasonable jury to conclude that no reasonable doubt existed.  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

Search of the Informant

Pribyl first argues that the evidence was insufficient for a jury to find him guilty beyond a reasonable doubt because the officers did not search McDaniel, her residence, or her car before the alleged transaction.  He suggests that without a search, officers could not be certain that McDaniel, who had incentive to lie, actually got the drugs from him.  Pribyl essentially asks us to reweigh a witness's credibility, but we leave credibility determinations to the jury.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

Assuming the jury believed the state's witnesses, there is ample evidence for it to conclude that the baggie and its contents passed from Pribyl to McDaniel to the police, unaltered.  Police officers testified that they searched McDaniel before the buy and that she did not have contraband.  The controlled buy was under video surveillance and a police sergeant testified that he watched Pribyl sell drugs to McDaniel.  The jury watched the videotaped transaction.  The officers and McDaniel testified that, after the transaction, McDaniel immediately left to meet the officers and that police followed her the entire way.  Under our standard of review, despite the possibility that a jury might believe that McDaniel somehow switched the contents of the baggie to curry favor with police, there is sufficient evidence, and a good deal of reason, to support the jury's decision to believe that the events unfolded as the witnesses described.

On the same bases we also reject Pribyl's argument that McDaniel was not a credible witness because she had incentive to lie.  The jury was aware of the deal McDaniel made in exchange for her cooperation.  The jury also heard that McDaniel smoked methamphetamine after the transaction.  This is not unlike the case of State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).  In Daniels, the supreme court dismissed a similar argument, deferring to the jury to assess witness credibility and noting that the jury had been "fully apprised of the witnesses' criminal records and plea bargains, [and] of the drug and alcohol consumption of the witnesses the night of the [crime]."  Id.  The jury clearly believed the state's witnesses, and their testimony and related evidence was sufficient to support Pribyl's conviction.

Chain of Custody

Pribyl contends that the evidence was insufficient to support a guilty verdict because the state did not prove that the substance McDaniel turned over to the officers was safely stored and transported.  Pribyl suggests that the state failed to establish a complete and untainted chain of custody between the buy in April 2004 and the BCA's receipt of the alleged methamphetamine in May 2005.  He points to the BCA's failure to account for the substance during that 13-month gap.

We consider Pribyl's argument in the context of his failure to object to admission into evidence of the methamphetamine and the test results.  The failure to object to the admission of evidence generally constitutes a waiver of the right to appeal on that basis, but we have discretion to remedy an unobjected-to error.  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  We use a three-pronged test to determine whether to reverse in this context:  There must be an error, the error must be plain, and the error must affect a defendant's substantial rights.  Id. An error is "plain" if it is clear or obvious.  State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002).  An error is prejudicial if there is a reasonable likelihood that the error had a significant effect on the jury's verdict.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).  Each prong of the test has to be met or the challenge on appeal fails.  See id. at 740.

Application of this test defeats Pribyl's challenge to the integrity of the evidence based on the 13-month gap between its collection and testing.  Authentication of evidence is generally left to the discretion of the district court.  See State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976) (noting that admissibility of evidence left to sound discretion of trial court).  "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."  Minn. R. Evid. 901(a).  When evidence is not unique and readily identifiable, it must be authenticated by means of a chain of custody.  State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982).  To establish a proper chain of custody, the proponent must offer testimony of continuous possession by each person having possession, with testimony by each that the object remained in substantially the same condition while in his or her possession.  Id.  The state need not eliminate all possibility of tampering or substitution, but only show that it is reasonably probable that the evidence has not suffered tampering or substitution.  State v. Bailey, 677 N.W.2d 380, 394 (Minn. 2004).

The state sufficiently established an unbroken and untainted chain of custody.  It showed that the substance was preliminarily tested and then sealed by an officer.  The substance was later sent to the BCA for laboratory testing.  Although the BCA scientist testified that she did not know where the substance had been between April 2004 and May 2005, the officer testified that it continued to bear his seal and Pribyl did not introduce any evidence suggesting that it had been tampered with during that period.  It is true that the state did not introduce especially detailed testimony about the chain of custody, such as whether the sealed evidence was kept in a storage locker, whether others had access to its place of storage, and so on.  But even if the state's description lacked detail, Pribyl's failure to object gave the state no basis to add to its skeletal rendition of custody.

Pribyl also fails to demonstrate that the alleged error had a significant effect on the jury's verdict.  The other evidence shows that McDaniel contacted Pribyl in order to buy methamphetamine, that she gave Pribyl $100 and got a baggie of something in exchange, that the officers obtained that baggie and tested its powdery contents, and that the officers' field test indicated that the substance was methamphetamine.  We hold that the district court did not err by admitting evidence of the corroborating BCA test results, and that even if the admission was error, the error did not affect Pribyl's substantial rights.

Affirmed.